Aboriginals lack a voice on juries: former supreme court judge

OTTAWA — Canada needs to urgently address a “crisis” in the justice system that creates unfairness for First Nations peoples because aboriginals are under-represented on juries, says a former justice of the Supreme Court of Canada.

In an interview with Postmedia News, Frank Iacobucci called for a “national conversation” on the issue.

His remarks came as he released a report Tuesday commissioned two years ago by the Ontario government in which he concludes that aboriginals in the province aren’t sufficiently represented on juries.

In the interview, Iacobucci said he examined other provinces during his independent review, and he believes the problem exists throughout the country.

He said that in a judicial system based on a long-standing principle that an accused has a right to be judged by a jury of his or her peers, this glaring shortcoming must be fixed.

“We are in a crisis situation with our First Nations people, our aboriginal people, in the justice system of Ontario and I would venture to guess that it is comparable in other jurisdictions,” said Iacobucci.

“I’m not an alarmist, by my nature or my record. But if this isn’t a wake up call for us to start doing something, I don’t know what will be.

“Peoples’ lives and liberty are at stake in this whole issue.”

Iacobucci, who served on the Supreme Court from 1991 to 2004, was appointed in the summer of 2011 by Ontario’s attorney general to conduct an independent review into how aboriginals on reserves were being picked for potential juries on trials and coroners inquests.

His review found a gaping hole in the system. For instance, potential jurors are picked in Ontario from municipal assessments lists. Because aboriginals on reserves don’t own land, they don’t appear on the lists.

As a result, when an aboriginal on trial looks into the faces of the jury that will decide his fate, they are less likely to see First Nations peoples.

In his report, Iacobucci said this is just a “symptom” of a broader problem in which aboriginals are under-represented as court officials, prosecutors, defence lawyers and judges.

He warned in his report that action is “desperately needed.”

“Doing nothing will be a profound shame especially when there has been a greater recognition throughout Canada of the tragic history of Aboriginal people, with many examples of mistreatment, lack of respect, unsound policies, and most importantly a lack of mutual trust between Aboriginal and Non-Aboriginal people,” he wrote.

Outside of Ontario, other provinces use a range of methods to choose juries, but Iacobucci — while stressing he does not speak for those provinces — concluded nonetheless that the jury-selection systems need to be improved for aboriginals throughout Canada.

“The problems that I have encountered in Ontario certainly seem to exist in other jurisdictions in Canada,” he said.

“I know they are not adequately represented in Ontario and I strongly suspect that’s the case in the rest of the country.”

Iacobucci said there is something inherently wrong with that.

“To leave out a great segment of the population because we don’t have the proper means to get them on juries is, to me, an unfairness.

“And we don’t want that to perpetuate that, I don’t think.”

He described the jury system — which dates back hundreds of years in the law — as a core element of the judicial process.

“This thing has been around a long time in one form or another. The traditional justification for it is that it increases the legitimacy of the criminal process.

“It is ordinary folks who are there to decide the guilt or innocence of the accused. And that legitimacy is extremely important.”

Iacobucci’s report, which was unveiled at a news conference in Thunder Bay, Ont., contains 17 recommendations. Among them are suggestions aimed at increasing the number of aboriginals on juries — such as possibly using health-records databases to find jurors and letting residents on reserves volunteer for jury duty.

As well, he calls for initiatives to provide public education about how the jury system works.

Ultimately, he said it’s crucial that aboriginals begin to trust the justice system — after many decades in which they have viewed it with suspicion.

“People feel the justice system is an enemy. They look upon it as alien, and as being systemic discrimination against folks from their communities.”

Iacobucci noted the dichotomy that faces aboriginals in Canada today.

“They are over-represented in the prison population, and under-represented in juries. Right cross the country. And that disconnect has to be rectified.”

Asked if people can therefore conclude — without a fix to the problem — that aboriginals are in jail because they are not getting a fair trial, Iacobucci said:

“This is an inference that you can draw.”

The former justice spoke forcefully about the need for Canada to deal with the problem, which he described as “the most difficult, complex set of issues I have ever encountered in my over than 50 years in the law.”

He said he hopes the Ontario government takes action promptly on his recommendations.

If not, he warned in his report: “We as a society will all be the worse off and the momentum for progress will likely come to a halt. The consequences of this will be very serious.”

Moreover, he told Postmedia News he wants the entire country to look at the problem closely and also adopt a fundamental shift in how it deals with First Nations people.

“We’ve got to change our attitudes towards doing things with aboriginal people – whether it’s on social welfare or economic development or the jury system.

“In relations between the federal government, the provincial government, the municipal government, it has to be a respectful government to government relationship.

Mark Kennedy arrived on Parliament Hill in 1988 as an Ottawa Citizen political reporter and has covered eight federal election campaigns. He won a National Newspaper Award for enterprise reporting and... read more spent a decade specializing in health-care coverage. He is currently parliamentary bureau chief at The Ottawa Citizen.View author's profile